Summary: there was fault in the way the Council communicated its decision to Mr X when it put him on the temporary accommodation transfer list and failed to notify him of his right to request a review of its decision that the property was suitable. The Council has agreed to provide a suitable remedy for the injustice caused.

The complaint

1. Mr X complained that the Council is taking too long to move his family to suitable temporary accommodation. The Council agreed to put him on the transfer list in June 2021 but he is still waiting for an offer.
2. As a result, Mr X and his family continue to live in accommodation which is overcrowded and unsuitable for their needs. He says there is not enough space for his youngest child to play in the flat and it is difficult to carry his child’s buggy up the stairs because there is no lift in the block.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have discussed the complaint with Mr X.
6. I considered the Council’s response to my enquiries and the relevant law and guidance.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Temporary accommodation

8. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
9. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)
10. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household.  This duty applies to interim accommodation and accommodation provided under the main housing duty.  (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2)
11. The accommodation provided under the main housing duty is called temporary accommodation. Councils meet this duty in different ways, including:
• using the council’s own housing stock
• using dedicated hostels or purpose-built accommodation
• procuring properties from housing associations or other Registered Providers of social housing
• leasing properties from private landlords
12. There is a severe shortage of temporary accommodation in Westminster and a high demand from homeless households. The Council has published a temporary accommodation placement policy setting out its criteria for allocating applicants temporary accommodation in Westminster (Band 1), in neighbouring London boroughs (Band 2) or outside those areas (Band 3).
13. There is also a large number of homeless households waiting for a transfer to suitable temporary accommodation. When the Council approves a transfer, applicants are put in one of the following three groups following an assessment:
• Group 1 - Households whose housing needs determine a transfer is necessary, and the accommodation they are in is not suitable (for example, due to severe overcrowding, serious medical need or a risk of violence)
• Group 2 -Households whom the Council must move because the accommodation is no longer available (for example, the lease on their accommodation is due to expire)
• Group 3 - Households who are in accommodation that is suitable and meets standards, but the Council has agreed should be moved.
14. Households in group 3 have lower priority than groups 1 & 2. Groups 1 and 2 are in accommodation which the Council deems to be unsuitable.

Review rights

15. Certain decisions councils make about homelessness carry a statutory right of review. The review decision then carries a right of appeal to court on a point of law. Homeless applicants have a right to request a review of the suitability of temporary accommodation provided under the main housing duty. (Housing Act 1996, s202)
16. Homeless applicants must seek a review within 21 days of the decision. However, applicants can ask a council to reconsider its decision about the suitability of temporary accommodation at any time. This might be necessary, for example, if there is a change in the applicant’s circumstances. This new decision is open to review under section 202, with a new 21 day timescale. R(B) v Redbridge LBC [2019] EWHC 250 (Admin)

Statutory overcrowding

17. The Housing Act 1985 gives two legal definitions of statutory overcrowding – the room standard and the space standard. A dwelling is statutorily overcrowded if either, or both, of these standards is contravened. Living rooms and bedrooms are counted when assessing if a household is overcrowded. Rooms under 50 square feet are not counted.
18. For the purpose of the room standard, the permitted number of occupiers for a two bedroom property with a living room is 5 persons. Children under 1 year old are not counted. Children aged two or over but under 10 years old are counted as ½ rather than one person. So, for the purposes of the room standard, Mr X’s family is considered to be a 3 person household. This means they are not statutorily overcrowded under the room standard.
19. The space standard is calculated by measuring the floor area of the bedrooms and living rooms in square feet to work out the number of permitted occupiers. The rule for counting children is the same as for the room standard.

Mr X’s circumstances

20. Mr X is homeless and the Council accepted the main housing duty in September 2020.
21. Mr X, his wife and children moved to their current temporary accommodation – a private sector leased property - in November 2020. It is a self-contained two bedroom flat with a living room in an outer London borough.
22. When they moved in, Mr & Mrs X had two children of the same gender, both of whom were under 10 years old. As two children under the age of 10 are expected to share a bedroom, a two bedroom property was the right size for their household.
23. Mr & Mrs X’s third child was born in January 2021.
24. In February 2021 Mr X requested a review of the suitability of his current temporary accommodation due to its location outside Westminster. A Review Officer decided the accommodation was not unsuitable for that reason. Mr X complained to us about the review decision. We did not investigate his complaint because he could have used his right of appeal to the County Court to challenge the review decision.
25. In mid-May 2021 Mr X asked the Council to transfer his family for a different reason. He said the flat was too small for their needs following the birth of their third child.
26. A Temporary Accommodation Transfer Officer considered his transfer request. An inspection officer from the property management company cancelled a visit to measure the rooms. So Mrs X sent photographs of the flat and her own measurements of the floor area of the two bedrooms and living room.
27. Mrs X’s measurements show the floor area of the main bedroom, and the living room, are both more than 110 square feet. Under the space standard, each of these rooms is considered large enough for two persons. The floor area of the second bedroom was between 70 and 89 square feet. The space standard says this is large enough for one person. This means the total permitted number of occupiers under the space standard is five persons. Mr X’s household is counted as 3½ persons under the legal definition for statutory overcrowding.
28. In mid-June 2021 the Temporary Accommodation Transfer Officer informed Mr X she had decided to put him on the temporary accommodation transfer list due to overcrowding. She confirmed he needed a three bedroom property and he had been placed in Band 3 (which refers to the location).
29. She also explained there was a shortage of larger properties and he would wait a long time to move. She did not say she had decided the property was suitable, and met relevant standards, but had nevertheless agreed to a transfer. The letter did not explain the difference between the priority groups on the transfer list and it did not mention the right to request a review.
30. In late July 2021 a Council officer responded to an enquiry from Mr X. She told him there were 23 families ahead of him in the transfer queue for a three bedroom property. This information conflicted with the Council’s response to Mr X’s complaint in October 2021 which said he was in 126th position.
31. The Council has apologised for the confusion this caused. It says the reference to being in 23rd position in July 2021 referred to Mr X’s position in the queue of households in group 3 (those who would benefit from moving to a larger property). The later reference to him being in 126th position was to his position in the combined transfer queues at that time.
32. In response to my enquiries, it said there are currently 145 households on the temporary accommodation list who need to transfer to a three bedroom property. Mr X is in position 106. 58 of these households are waiting for a transfer to a Band 3 property, and Mr X is in 53rd position in that queue. The Council provided a spreadsheet which shows a few people in this group have been waiting since 2017/18 for a transfer and many more have been waiting since 2019.
33. The Council accepts Mr X’s family would benefit from living in a larger property. However it says they are not statutorily or severely overcrowded in the current flat. Mr X’s youngest child could sleep in a cot in his parents’ bedroom or they could use the living room. For these reasons, it does not consider the accommodation is unsuitable due to overcrowding.
34. The Council also provided information about the number of households who have transferred to three bedroom temporary accommodation units since Mr X joined the list. 27 households moved between July 2021 and January 2022: they were all in priority groups 1 or 2.
35. The Council currently has 610 three bedroom properties in use as temporary accommodation. 260 of these units are in the borough of Westminster. The other 350 properties are outside the borough. The Council has directly purchased 68 three bedroom properties to increase its supply of temporary accommodation.

Analysis

36. Mr X needs more space following the birth of his third child. Under the bedroom standard, he is entitled to a three bedroom property. However the Council is correct when it says his household is not statutorily overcrowded.
37. When the Council put Mr X on the transfer list in June 2021, it placed him in group 3 because it considered he would benefit from a move. It did not consider his current flat was severely overcrowded and therefore unsuitable. It decided he did not meet any of the criteria for a higher priority group 1 or 2 transfer.
38. In effect, the Council made a new decision then that his current flat was suitable. That decision carried the right to a review. However, the Council did not communicate that decision to Mr X. It should have told him he could request a review under section 202 of the Housing Act 1996 if he disagreed with the decision that his current accommodation was suitable. Its failure to do that was fault and denied Mr X his statutory right of review and appeal to court. This is an injustice to Mr X.
39. However as the Council considers his current accommodation meets the suitability standards for temporary accommodation, we cannot find the delay in moving Mr X and his family since June 2021 is fault.

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Agreed action

40. Within one month of my final decision, the Council should:
• Apologise to Mr X for failing to properly explain its decision in June 2021 and failing to notify him then of his right to request a review if he disagreed with its decision that his current accommodation is suitable;
• Pay Mr X £250 to recognise the distress caused by its failure to notify statutory review rights;
• Issue a new decision letter giving adequate reasons for its decision that the flat is suitable and reinstate his right to request a review;
• Remind relevant staff that decisions about suitability should be communicated in writing and set out the statutory right to a review.

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Final decision

41. I have completed the investigation and found the Council was at fault and this caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman